Interim Report - Report No 208, June 1981

Case No 1007 (Nicaragua) - Complaint date: 20-NOV-80 - Closed

1. 371. By a communication dated 20 November 1980, the international Organisation of Employers presented its complaint, and sent additional information on 9 January 1981. The Government furnished its observations on 21 November 1980 and on 30 January 1981.
2. 372. Nicaragua has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 373. The International Organisation of Employers (IOE) alleges that on 17 November 1980, Mr. Jorge Salazar Argüello, Vice-President of the Managing Board of Private Enterprises (COSEP), while unarmed, was shot down by the police during an ambush, a few moments after presiding over a meeting of COSEP. According to the complainant, which categorises this event as murder, no serious argument has been advanced in support of the accusations made by the Government against Mr. Salazar (transporting of weapons, membership in an insurgent movement whose aim was to re-establish the Somoza regime, and procurement of aid from abroad for this purpose).
2. 374. Whilst referring to violations in Nicaragua of civil liberties which are essential for the exercise of trade union rights, the complainant gives particular emphasis to the events relating to the death of Mr. Salazar. According to the complainant, the right to a fair trial before an independent judicial body was not applied in Mr. Salazar's case; for instance, the court which convicted eight alleged members of participating in a counterrevolutionary plot, and absolved others, decided to "close definitively the case in favour of Jorge Salazar Argüello because of his death", without resolving either the doubt over what really happened on 17 November 1980, or the question of his leadership of the plot. The alleged proofs come from statements of journalists and detainees (the latter obtained in prison), from verbal testimony by one member of the police, and from written testimony by a civil servant who did not appear at the trial.
3. 375. With reference to the exercise of free speech, the complainant argues further that the Government had decided that the murder of Mr. Salazar was to be categorised as having occurred during "an armed conflict" and could not be reported by any media (press, radio, etc.), without a prior veracity check by government services as provided for in Decree No. 511 of 10 September 1980.
4. 376. In its communication of 20 November 1980 the International Organisation of Employers cites the imprisonment of various leaders of private enterprises. The IOE indicates that the arrests and detentions which occurred after the change of regime have not ceased, and that section 51 of the Decree on Rights and Guarantees of the Nicaraguans denies the right of habeas corpus for certain crimes ("alleged or real crimes committed during the Somoza period").
5. 377. The IOE also alleges that the Government tolerates and favours the pressure brought by the FSLN (National Sandinista Liberation Front) to force the major independent trade unions to join the single central trade union. The IOE refers, in an appendix, to the provisions of draft labour law on professional associations, which would establish that trade union policy should be oriented towards avoiding the proliferation of trade union organisations; prohibit the formation of other trade unions if there already existed one in a particular industry or economic activity; establish a Single Central organisation of workers for urban workers and rural workers; and would establish trade unions only for workers, whereas Convention No. 87 also guarantees to employers the right of association.
6. 378. As far as the employers and independent professions are concerned, the IOE alleges that the FSLN, with the Government's support, is trying to divide up the COSEP in organising small and medium-sized undertakings, and is doing the same with independent professions. In particular, the IOE points out that the preliminary draft of the law on regulation of professional activities (proposed by the FSLN and published jointly by the Government and the FSLN) confers extremely wide powers on the bodies which would be created (National Council of Professions and National Confederation of National Associations), and thus limits the freedom of action of those engaged in independent professions. According to the IOE, the Government is hostile towards COSEP and its members.
7. 379. Finally, the IOE alleges that under Decree No. 530 of 24 September 1980, the negotiation and approval of collective agreements require the Ministry of Labour's approval.

B. Reply of the Government

1. 380. In its communication of 30 January 1980, the Government states that the death of Mr. Salazar is in no way related to the fact that he was the Vice-President of COSEP, and his death could not be considered as murder without the elements of premeditation, treason or profit, and it should also not be qualified as homicide since his death resulted from an armed conflict between the members of the Security Services of the State and an armed group of which he was a member and which was conspiring against the Government.
2. 381. The Government adds that the death of Mr. Salazar cannot be considered as a violation of Convention No. 87, which was plainly demonstrated by the statements of witnesses and of detainees. These persons had confessed to planning a coup d'état and to conspiracy plans which they tried to carry out in co-ordination with some members of the former Somoza Guard. The Government further argues that Mr. Salazar's activities could in no way be regarded as trade union activities, since they were obviously conspiratorial and constituted a crime against the security of the State.
3. 382. The Government states that the detainees could in no way be considered trade union leaders, as the IOE claims, and that these persons did not belong to any trade union (even if this were possible in Nicaragua there are no employers' professional associations, but only organisations formed and regulated by the Civil Code). These persons were conspiring against peace, the security of the State and the life of government officials.
4. 383. Consequently the Government rejects the accusations of violation of Convention No. 87 and of murder.
5. 384. The Government sent a copy of the indictment and the text of the judgement (presently under appeal), as well as a copy of the statements to the judicial authorities and to the police linking the following persons to conspiratorial activities aiming at the overthrow of the Government and assassination of government officials: Jorge Salazar, Dora Maria Lau de Lacayo, Leonardo Ramón Sommarriba, Alejandro Salazar Elizondo, Nestor Moncada Lau, Luis Adolfo Valle Lau, Mario Hannon Talavera, Jaime Francisco Castillo and Gabriel Lacayo Benard.

C. Conclusions of the Committee

1. 385. Before treating the questions raised by the complainant, the Committee wishes to express its concern over the gravity of certain allegations related to the death of a leader of COSEP, which the Committee profoundly deplores, and to the arrest of several employers who are leaders of private undertakings.
2. 386. In the Committee's opinion, the fact that the COSEP does not have the status of a trade union organisation in the eyes of the Nicaraguan legislation does not dispense the Government from the obligations arising from its ratification of Convention No. 87, in particular, to respect the freedom of the employers in Nicaragua to establish organisations of their own choosing, to organise their administration and activities and to formulate their programmes without interference from the public authorities which would restrict this.
3. 387. The Committee notes the information submitted by the Government as regards Mr. Salazar, and in particular the fact that the First Criminal Tribunal of Managua "definitely closes the case in favour of Mr. Salazar because of his death". The Committee nevertheless notes that the Government in its communication accuses Mr. Jorge Salazar Argüello of having conspired against the Government in an armed group. It also observes that if such information refers to the alleged conspiratorial activities, it does not contain sufficient details regarding the motives and circumstances of the activities carried out by the police which resulted in the death of Mr. Salazar, in relation to which, according to the information available to the Committee, the Government has formally admitted that he was not armed at that moment. In this respect, the Committee notes that the report of the interrogation by the public prosecutor of the Assistant Director of the State Security Services does not contain a reply to question No. 45 concerning the circumstances of Mr. Salazar's death. The Committee also notes that the text of the decision sent by the Government does make a reference to the judicial proceedings carried out by the Second Criminal Tribunal to investigate Mr. Salazar's death, which includes testimony regarding his death, but the Committee has not received a report of these proceedings. In these circumstances the Committee, as it has done on previous occasions in considering allegations relating to death of trade unionists, can only urgently request the Government, if it has not done so already, to undertake as soon as possible an independent judicial inquiry with a view to elucidating the facts in full, determining responsibilities and punishing the guilty parties, and to communicate the results of this inquiry.
4. 388. In reference to arrests and detentions of the other leaders, the Committee has examined the text of the Court's decisions depriving them of their liberty for different time periods for their participation in conspiratorial activities, and it has also noted that they have already appealed. The Committee requests the Government to send it the text of the judicial decision of the appeal, so that it can take a decision on the allegations with full knowledge of the facts.
5. 389. As regards Decree No. 530 of 24 September 1980, which requires approval of collective bargaining agreements by the ministry of Labour, the Committee draws the Government's attention to the fact that the requirement of approval or acknowledgement by a government authority to make an agreement valid is not in full conformity with the principle- of voluntary collective bargaining, established under Convention No. 98. In similar cases, the Committee has recommended the establishment of procedures such as the creation of consultative bodies, designed to ensure that the parties to collective bargaining have regard voluntarily in their negotiations to considerations relating to the economic or social policies of the Government, and the safeguarding of national interests, which in any case should utilise persuasion and not entail recourse to measures of compulsion, while conserving the freedom of both parties as regards the final decision.
6. 390. Finally, the Committee observes that the Government has not replied to the allegations concerning the draft labour law on trade unions; and to the alleged FSLN pressures on the major independent trade unions to force them to join a single trade union; and to the limitation on freedom of information by prohibiting the publication of information on the death of Mr. Salazar Argüello; the alleged efforts of the FSLN, with the Government's support, to divide up the COSEP; the preliminary draft of the law on regulation of professional activity and the hostility of the Government towards COSEP and its members. The Committee asks the Government to send it information regarding these allegations.

The Committee's recommendations

• Recommendations of the Committee
  391. 391 In these circumstances the Committee recommends the Governing Body to approve this interim report, and in particular the following conclusions;
• The Committee deplores the death of the Vice-President of COSEP, Mr. Jorge Salazar Argüello, and expresses its concern over the gravity of the allegations.
• The Committee draws the Government's attention to the fact that the obligations which arise to respect trade union rights does not depend on the legal form chosen by the employers of Nicaragua for their organisation.
• The Committee asks the Government to undertake as soon as possible, if it has not done so already, an independent judicial inquiry on the death of Jorge Salazar Argüello, with a view to elucidating the facts in full and determining responsibility, and to communicate the results of this inquiry.
• The Committee asks the Government to supply it with the texts of the judicial decisions of the appeal concerning the arrested and detained leaders in question.
• The Committee draws the Government's attention to the fact that submission of collective bargaining agreements for prior approval to the Ministry of Labour is not in full conformity with the principle of voluntary collective bargaining, and that in similar cases the Committee has recommended the establishment of procedures which would utilise means of persuasion rather than compulsion, so that both parties can take account voluntarily of the economic and social policy of the Government.
• The Committee requests the Government to communicate additional information regarding the allegations to which it has not yet replied (draft law on trade unions, pressures on the major independent trade unions to force them to join a single central trade union, attempts by the FSLN to divide up COSEP, the preliminary draft of the law on regulation of professional activity, and the Government's hostility towards COSEP and its members).